Parker v British Airways Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVELEIGH,LORD JUSTICE DONALDSON,SIR DAVID CAIRNS |
| Judgment Date | 21 December 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1221-7 |
| Docket Number | 81/0533 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1981 |
[1981] EWCA Civ J1221-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CIVIL DIVISION
Royal Courts of Justice,
Lord Justice Eveleigh,
Lord Justice Donaldson
and
Sir David Cairns
81/0533
Mr STEPHEN DESCH, Q.C and Mr ROBERT WEBB (instructed by Messrs Richards, Butler & Co.) appeared on behalf of the Appellants (Defendants).
Mr G.C. BROWN (instructed Messrs Edward Isaacs & Co.) appeared on behalf of the Respondent (Plaintiff).
Lord Justice Donaldson will deliver the first judgment.
On 15th November, 1978, Mr Alan George Parker had a date with fate—and perhaps with legal immortality. He found himself in the International Executive lounge at Terminal One, Heathrow Airport. And that was not all that he found. He also found a gold bracelet lying on the floor.
We know very little about Mr Parker, and it would be nice to know more. He was lawfully in the lounge and, as events showed, he was an honest man. Clearly he had not forgotten the schoolboy maxim "Finders keepers". But, equally clearly, he was well aware of the adult qualification "unless the true owner claims the article". He had had to clear Customs and Security to reach the lounge. He was almost certainly an outgoing passenger because British Airways, as lessees of the lounge from the British Airports Authority and its occupiers, limit its use to passengers who hold first-class tickets or boarding passes or who are members of their Executive Club, which is a passengers' "club". Perhaps Mr Parker's flight had just been called and he was pressed for time. Perhaps the only officials in sight were employees of British Airways. Whatever the reason, he gave the bracelet to an anonymous British Airways official instead of to the police. He also gave the official a note of his name and address and asked for the bracelet to be returned to him if it was not claimed by the owner. The official handed the bracelet to the lost property department of British Airways.
Thus far the story is unremarkable. Mr Parker, the British Airways official and British Airways itself had all acted as one would have hoped and expected them to act. Thereafter matters took what, to Mr Parker, was an unexpected turn. Although the owner never claimed the bracelet, British Airways did not return it to Mr Parker. Instead they sold it and kept the proceeds which amounted to £850. Mr Parker discovered what had happened and was more than a little annoyed. I can understand his annoyance. He sued British Airways in the Brentford County Court and was awarded £850 as damages and £50 as interest. British Airways now appeal.
It is astonishing that there should be any doubt as to who is right. But there is. Indeed, it seems that the academics have been debating this problem for years. In 1971 the Law Reform Committee reported that it was by no means clear who had the better claim to lost property when the protagonists were the finder and the occupier of the premises where the property was found. Whatever else may be in doubt, the Committee was abundantly right in this conclusion. The Committee recommended legislative action but, as is not uncommon, nothing has been done. The rights of the parties thus depend upon the common law.
As a matter of legal theory, the common law has a ready-made solution for every problem and it is only for the Judges, as legal technicians, to find it. The reality is somewhat different. Take the present case. The conflicting rights of finder and occupier have indeed been considered by various Courts in the past. But under the rules of English jurisprudence, none of their decisions binds this Court. We therefore have both the right and the duty to extend and adapt the common law in the light of established principles and the current needs of the community. This is not to say that we start with a clean sheet. In doing so, we should draw from the experience of the past as revealed by the previous decisions of the Courts. In this connection we have been greatly assisted both by the arguments of Counsel, and in particular those of Mr Desch upon whom the main burden fell, and by the admirable judgment of the learned Deputy County Court Judge.
Neither Mr Parker nor British Airways lays any claim to the bracelet either as owner of it or as one who derives title from that owner. Mr Parker's claim is founded upon the ancient common law rule that the act of finding a chattel which has been lost and taking control of it gives the finder rights with respect to that chattel. British Airways' claim has a different basis. They cannot and do not claim to have found the bracelet when it was handed to them by Mr Parker. At that stage it was no longer lost and they received and accepted the bracelet from Mr Parker on terms that it would be returned to him if the owner could not be found. They must and do claim on the basis that they had rights in relation to the bracelet immediately before Mr Parker found it and that these rights are superior to Mr Parker's. British Airways' claim is based upon the proposition that at common law an occupier of land has such rights over all lost chattels which are on that land, whether or not the occupier knows of their existence.
The common law right asserted by Mr Parker has been recognised for centuries. In its simplest form it was asserted by the chimney sweep's boy who, in 1722, found a jewel and offered it to a jeweller for sale. The jeweller refused either to pay a price acceptable to the boy or to return it and the boy sued the jeweller for its value ( Armory v. Delamirie, 5 Strange 505). Pratt C.J. ruled "That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover".
In that case the jeweller clearly had no rights in relation to the jewel immediately before the boy found it and any rights which he acquired when he received it from the boy stemmed from the boy himself. The jeweller could only have succeeded if the fact of finding and taking control of the jewel conferred no rights upon the boy. The Court would then have been faced with two claimants, neither of which had any legal right, but one had de facto possession. The rule as stated by Pratt C.J. must be right as a general proposition, for otherwise lost property would be subject to a free-for-all in which the physically weakest would go to the wall.
Pratt C.J's ruling is, however, only a general proposition which requires definition. Thus one who "finds" a lost chattel in the sense of becoming aware of its presence, but who does no more, is not a "finder" for this purpose and does not, as such, acquire any rights.
Some qualification has also to be made in the case of the trespassing finder. The person vis-a-vis whom he is a trespasser has a better title. The funadmental basis of this is clearly public policy. Wrongdoers should not benefit from their wrongdoing. This requirement would be met if the trespassing finder acquired no rights. That would, however, produce the free-for-all situation to which I have already referred, in that anyone could take the article from the trespassing finder. Accordingly, the common law has been obliged to give rights to someone else, the owner exhypothesi being unknown. The obvious candidate is the occupier of the property upon which the finder was trespassing.
Curiously enough, it is difficult to find any case in which the rule is stated in this simple form, but I have no doubt that this is the law. It is reflected in the judgment of Chitty J. in Elwes v. Brigg Gas Co., (1886) 33 Ch. D. 562 at page 568, although the chattel concerned was beneath the surface of the soil and so subject to different considerations. It is also reflected in the judgment of Lord Goddard C.J. in Hibbert v. Mckiernan, (1948) 2 K.B. 142 at page 149. That was a criminal case concerning the theft of "lost" golf balls on the private land of a club. The only issue was whether for the purposes of the criminal law property in the golf balls could be laid in someone other than the alleged thief. The indictment named the members of the club, who were occupiers of the land, as having property in the balls, and it is clear that at the time when the balls were taken the members were very clearly asserting such a right, even to the extent of mounting a police patrol to warn off trespassers seeking to harvest lost balls.
It was in this context that we were also referred to the opinion of the Judicial Committee in Glenwood Lumber Co. v. Phillip, (1904) A.C., 405, and in particular to remarks by Lord Davey at page 410. However, there the occupier knew of the presence of the logs on the land and had a claim to them as owner as well as occupier. Furthermore, it was not a finding case, for the logs were never lost.
One might have expected there to be decisions clearly qualifying the general rule where the circumstances are that someone finds a chattel and thereupon forms the dishonest intention of keeping it regardless of the rights of the true owner or of anyone else. But that is not the case. There could be a number of reasons. Dishonest finders will often be trespassers. They are unlikely to risk invoking the law, particularly against another subsequent dishonest taker, and a subsequent honest taker is likely to have a superior title (see, for example, Buckley v. Gross, (1863) 3 Best & Smith, 566). However, he probably has some title, albeit a frail one because of the need to avoid a free-for-all. This seems to be the law in Ontario, Canada ( ...
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